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OCDW 11.28.16

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

No new cases.

TENTH CIRCUIT

The Estate of Clayton Lockett v. Governor Mary Fallin, No. 15-6134 (10th Cir., November 15, 2016) (Published) (Gorsuch, Phillips & Moritz) (W.D. Okla., Hon. Joe Heaton): Civil Rights: This is a lengthy opinion affirming the dismissal of a civil rights action against the State by the estate of Clayton Lockett, who was the death row inmate subjected to the botched execution. The majority held that there was no violation of the Eighth Amendment. Judge Moritz concurred, but chastised the majority for deciding constitutional issues raised in the case.

United States v. Jeremy Gilmore, No. 15-3114 (10th Cir., November 15, 2016) (Published) (Holmes, Seymour & Phillips): Federal Sentencing Guidelines (Sentence Modification): Denial of a motion to reduce sentence based upon a retroactive sentencing amendment is affirmed because the term of imprisonment was not “based on” a guidelines sentencing range.

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

No new cases.

OTHER CASES OF NOTE

United States v. Lydia Vasquez, No. 15-41168 (5th Cir., October 5, 2016): Federal Sentencing Guidelines (Fictitious Minor): Vasquez was convicted of enticing and coercing an individual to engage in unlawful sexual activity, and on appeal she challenged an eight-level enhancement for an offense involving a minor under the age of 12 when she knew the minor was fictitious because made it up. The panel held that the enhancement does not apply when the accused invents and offers a fictitious minor under twelve years of age to entice another person to engage in unlawful sexual activity.

United States v. Anthony Ryan Gonzales, No. 15-50762 (5th Cir., November 2, 2016): Jury Instructions; Sufficiency: Interesting case analyzing the use of special jury questions in a drug conspiracy/murder/firearms case. The panel held that the special questions (to which neither party objected) were acceptable, but that once asked, the answers must be considered when evaluating the sufficiency of the evidence.

United States v. Courtland Lenard Turner, No. 15-50788 (5th Cir., October 13, 2016): Search and Seizure (Computers/Electronic): As the panel stated it, the central issue in this case is whether a law enforcement officer’s scanning of the magnetic strip on the back of a gift card is a search within the meaning of the Fourth Amendment. The panel joined two other circuits in holding that it is not.

United States v. Tony Jefferson Browne, No. 14-1798 (3rd Cir., August 25, 2016): Evidence (Facebook; Authentication): This case deals with authentication issues under Rule 901 and 902 of Facebook chats. The panel disagreed with the Government that the chats were self-authenticating as business records, but held that the trial record reflected sufficient evidence to link Browne to the chats which satisfied the Government’s authentication burden under Rule 901.

United States v. Fahd Hussain, No. 14-4425-cr (2nd Cir., August 31, 2016): Search and Seizure (Traffic Stops; Reasonable Suspicion): Denial of suppression motion is reversed in this traffic stop case because the facts did not support a full protective search of the passenger compartment of the vehicle.

PANHANDLERS: Oklahoma City police have been busy handing out tickets to homeless panhandlers at N.E. 23rd and Santa Fe. Homeless panhandlers can be a problem that needs to be addressed, but something bothers me about the police dealing with it in this way. It just seems like piling on defenseless people.

RAPE CHARGE: A female food service supervisor at Lawton Correctional Facility has been charged with rape after it became apparent that she had an affair with an inmate. Rape is such a strong word for this offense. The legislature should call this something else if it wants to punish people who do this.

IMMIGRATION: Interesting article about the impact of the 2007 immigration bill in Oklahoma, one of the most strict in the country.

FORFEITURE CONTROVERSY: Attorney Winston Connor won a forfeiture action for a client accused of animal cruelty—in the form of having the animals returned to the client—but now faces a significant backlash from the public.

SHERIFF HONORED: The Dewey County Sheriff has been honored for his actions in ending the killing spree of Michael Dale Vance. At the ceremony, Lt. Gov. Todd Lamb said this: “Your actions that night protected my family in Oklahoma City, protected my family in Enid… because of your actions and activity in intervening. We found the scumbag and other brothers and sisters in law enforcement eliminated the life of that scumbag because of your actions earlier on in that day.”

HOLTZCLAW BILLBOARD: Friends and family of former police officer Daniel Holtzclaw are raising questions about his guilt by using billboards.

TEXTING LAW: The OU Daily reports that police in Norman often write tickets for “failure to devote full time and attention” rather than tickets for violating the recently enacted anti-texting law.

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ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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